Motion to dismiss overruled in Morven Construction defamation case

The Morven Construction quarry on County Road 2 between Kingston and Napanee. The quarry and activity there are at the crux of a number of legal battles between Morven Construction Ltd. and the family that previously owned the property directly across the road from the quarry, including a defamation case, which the Xu family attempted to have dismissed recently. Photo by Cris Vilela/Kingstonist.

A couple seeking to have a case against them dismissed, stating that the charges unduly limit their expressions on matters of public interest, did not get their way in a Kingston courthouse earlier this month.

Morven Construction Ltd. has filed a suit for defamation against Hong Jie Xu and Yu Quing Huang, who will hereafter be referred to as the Xus. Morven Construction owns and operates a quarry directly across from the Xus’ former property on County Road 2, just west of Kingston.

“The crux of the dispute between the parties is the complaint by the Xus about the dust and noise arising from Morven’s quarry operation,” Justice Gary Tranmer explained of the case.

It should be noted that the quarry was in operation for many years prior to the Xus purchasing their property – the quarry has been licensed since 1992 and, while the Xus purchased their property in 2015, they did not personally reside in the home until late August 2021. It was at that time the Xus “took issue with the dust and the noise which they attribute to quarry operations,” Justice Tranmer continued. “They posted signage on their property along the highway, distributed a petition to neighbours and posted social media complaints criticizing Morven. They communicated their complaints to Morven and to government officials.”

On Monday, Jan. 23, 2023, Justice Tranmer was in the Superior Court of Justice in Kingston to hear an application from the Xus seeking a dismissal of the legal actions commenced against them by Morven Construction, under Subsection 3 of Section 137.1 of the Courts of Justice Act. That section of the Act deals with ensuring the freedom of expression of parties in legal proceedings when the content of that expression is of public interest.

In deciding whether to dismiss Morven Construction’s defamation claims against the Xus, the court heard about the means by which the Xu family published statements about the company. First, public roadway signs were “erected by the Xus on the property facing the county road” which displayed the following:

“Morven Construction / I can’t breathe safely / stop the corporate greed / my lungs and and [sic] not your dust bin” with an image of a black skull and crossbones.

“Morven Construction. Silica dust causes silicosis, TB, and cancer. Stop the pollution NOW,” with an image of a black skull and crossbones.

“Morven stops [sic] pollution!”

The court also heard about the “public social media accounts” which were “created by Xus” on Facebook, Twitter, and YouTube, and included the following statements:

“Is it Afghan battlefield? NO, IT IS CANADA. Don’t cry for me, Canada.”

“Morven’s Construction’s Pollution.”

Finally, the court heard about the flyers distributed “to residents by the Xus,” which expressed:

“We are residents of 6580 County Road 2, Odessa. Morven Construction makes dust PM2.5 exceeds air standard seriously. We have tested for three weeks. High PM 2.5 irreversibly hurt human health, which causes many diseases like heart disease, Silicosis (lung losing function), lung cancer, cough, painful eyes etc. These diseases will surface after many years. Suggest you make appointment of doctor for checking lung. We will make an appointment with lung doctor.”

“Long-term blasting damages our house, water well, human’s nervous system and biological clock, especially like big blasting today (Nov 18, 2021).”

“We are negotiating with Morven Construction, asking the company compensation and stop pollution. At same time, we report to Canadian Ottawa environment department about Morven Construction blasting and pollution. If necessary, we will find justice and solve the problem by court. If you want to join us to struggle for our health and environment, welcome to contact us.”

While the Xus sold their property in May 2022 and moved, Morven maintains its application for a permanent injunction against defamation, Justice Tranmer noted.

The motion for dismissal before Tranmer was moved by the Xus under Section 137.1 of the Courts of Justice Act, on the grounds that their signs, flyers, and social media campaigns reflected and related to public interest (as per Subsection 3 of that Section). However, in order for the Xu’s dismissal to be approved, public interest alone would not be sufficient grounds; it would also need to be proven that the original proceeding (the defamation case) does not have substantial merit, and that the harm or potential harm to the reputation of Morven Construction was not serious.

For Morven to prevail, as per Subsection 4 of that Section, they would need to demonstrate the merit of the defamation suit, and would also need to demonstrate that “the harm likely to be or have been suffered by [Morven Construction] as a result of the [Xus’] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

Morven conceded that the expressions at issue qualify as being of public interest, which Justice Tranmer agreed with, therefore Subsection 3 was met by the Xus. Morven agreed that the burden therefore shifted onto Subsection 4. The company had to prove harm suffered — or likely to be suffered — as a result of the expressions published by the Xus.

Justice Tranmer noted that actual harm to reputation is not required to establish defamation. “There must be a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff.”

The judge noted the following:

  • The affidavit evidence of Morven as to the past and future damage to its reputation has not been challenged in cross examination
  • The Xus conceded that, “the petition and the signs, when taken as a whole, could have that defamatory overtone in that its message, if received and accepted, would tend to lower Morven in the esteem of community members and lead them to view it with dislike or contempt” and that “Those potential clients and business partners who have seen our website pollution record no longer choose Morven, indicating that they are against pollution.”

“I agree that Morven has fairly characterized ‘the sting’ of the words and conduct of the Xus,” he stated. “I would also add that likening the quarry operation to an Afghanistan battlefield as defamatory is a triable issue.”

Justice Tranmer noted that he did not agree with the Xus that the pleadings in the application are deficient and, while the Xus pointed out that a permanent injunction “is an extraordinary remedy that must be granted sparingly,” the judge found that statements within the Factum of the Xus “demonstrated there are ground to believe that they will continue to criticize Morven if not restrained.”

Outlining some of the assertions published by the Xus, Justice Tranmer noted that the Xus also asserted that there are proved facts, as laid out in their Factum by their expert. “It is to be noted that the expert reports were secured well after the signage, petition and media post,” he added.

“Morven asserts that there are deficiencies in the expert reports, and notes that there is no evidence of health issues caused by the quarry operations, there is no evidence that the quarry generates silica dust, there is no evidence of corporate greed and there is no evidence of similarity between the quarry operation and an Afghan battlefield,” he continued.

“Freedom of expression is a fundamental right and value. As I have indicated earlier, I find that there are grounds to believe that they have defamed Morven and there are grounds to believe that they have no valid defence,” the judge stated. “In my view, their expression could be fairly characterized as strongly-held personal opinion put forward as if it were fact. The expression has no sound foundation.”

In his decision, Justice Tranmer outlined that Morven Construction had “successfully met both the merits based hurdle and the public interest hurdle,” adding, “Morven has satisfied me that there are grounds to believe that its proceeding has substantial merit.”

“I dismiss the motion brought by the Xus under s. 137.1 and I allow the Morven’s lawsuit in defamation to proceed,” he stated. “Morven deserves to have its day in court to potentially vindicate its reputation.”

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